The Law on Obtaining a Financial Advantage by Deception in NSW

By Sahar Adatia and Jimmy Singh.

The allure of winning a large sum of money is something most of us, at some point, find ourselves daydreaming about.

Indeed, having more money than you can count and being able to afford that trip around the world, the spectacular mansion and let’s throw in a yacht, is all too enticing.

So, it’s not surprising that news of massive jackpots to be won often sends millions searching for, well, millions.

For some of us, however, the temptation turns all too real/relentless/unyielding and the search for that extra cash becomes a little ruthless.

Case in point: On 7 September 2018, an employee at SkyCity Casino in Darwin allegedly checked the winning ticket of a Keno player, told him he had lost, and then ran off with the winnings of more than $53,000.

Little did the Keno player suspect that he would ever find himself both winning a lottery ticket and the victim at the heart of an alleged theft investigation.

Search Warrant Executed at a House by Northern Territory Police

According to Senior Sergeant of the Serious Crime Squad, Karl Day, other employees at the licenced premises alerted of the wrongdoing, and following this a search warrant was executed at a house in Darwin. A large amount of cash, believed to be part of the winnings, was found on the premises.

Speaking of the incident, Senior Sergeant Day said, “I think it’s a pretty unique sort of thing; I don’t think many people would have to be too concerned.”

“Licenced premises across the Territory are renowned for their professionalism when it comes to gambling.”

Nonetheless, he advised that people should “pay attention” when it comes to collecting or checking tickets of any type.

Police Charge employee and Accomplice with Criminal Deception

While for the Keno player, the celebrations were initially short-lived in allegedly being misled by the cashier that his ticket was not a winner, on 31 October, Northern Territory Police charged the 35-year-old employee working at the licenced premises, along with a 36-year-old accomplice with criminal deception and stealing.

The pair are due to appear in Darwin Local Court next month.

In the meantime, while a comment was requested from SkyCity Darwin, the casino instead issued a statement saying, “as this is a police matter and as an investigation is underway and charges have been filed, we are unable to comment”.

All the while, the SkyCity Casino website reads, “Encouraging responsible gambling is important to SkyCity Darwin and we take pride in being a responsible host.”

Happy Ending for Keno Winner

As for the Keno ticket holder, the result was a happy ending. He received his prize in full with police handing him back the $53,000.

The case of deception is reminiscent of the 2005 Sydney incident in which Chris Ong, a man working at the cash register of World Square Newsagency Bookshop, allegedly falsely claimed the lottery winnings of a couple by replacing the winners’ prize claim form and the original ticket with one filled out by himself, including his details. Lotto then paid him via an electronic funds transfer a massive sum of $574,000, which ultimately led to a complex legal battle of fraud unravelling.

Understanding Fraud and the Law on Obtaining Benefit by Deception Charges in NSW

The offence of obtaining benefit by deception was created for cases where the accused dishonestly obtained property or any financial advantage by the use of deception. This charge is typically laid in circumstances where the offender engages in deceptive and dishonest conduct, the result of which is that the accused acquires an advantage in terms of property or finance for themselves or someone else.

In NSW, this offence, commonly understood as fraud, is contained in Section 192E of the Crimes Act 1900.

A person guilty of dishonestly obtaining a financial advantage by deception can expect to face a penalty of up to ten years imprisonment.

Accordingly, a person charged with obtaining a financial advantage or causing a financial disadvantage will be guilty if the police can prove beyond reasonable doubt:

1. The person charged either received a financial benefit or caused a financial disadvantage to someone else; and
2. The operative cause of this was due to that person’s ‘deception’ (i.e. he/she did something without authority/permission); and
3. That ‘deception’ was done dishonestly. The ‘dishonesty’ will usually be inherent in the ‘deceptive’ conduct engaged in. Dishonesty here means, where the person did something knowing he/she was not entitled to the financial advantage (or knew he/she wasn’t entitled to causing the financial disadvantage).

Section 192B of the Crimes Act 1900 (NSW) defines ‘deception’ as any deception, by words or other conduct, as to fact or as to law, including:

• A deception as to the intentions of the person using the deception or any other person; or
• conduct by a person that causes a computer, a machine or any electronic device to make a response that the person is not authorised to cause it to make.

Dishonesty is also defined in section 4B of the Crimes Act 1900 (NSW) which means being dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people.

If the police are unable to prove all the elements of the charge of obtaining a financial advantage offence (i.e. financial advantage or cause financial disadvantage), then the person accused can still face and be guilty of a charge of larceny as an alternative verdict under section 192E(4) of the Crimes Act 1900 (NSW).

For a more thorough outlines of larceny, see our previous blog on the law on larceny charges.

Some common defences to an obtaining a benefit by deception charges includes any one of the following:

1. The offence was committed in circumstances of Duress or Necessity.
2. You committed the offence in circumstances that you honestly believed that you had a legal entitlement to the property (or legal entitlement to the financial advantage). This defence can only work if the court concludes that in the circumstances the accused was in a reasonable person in the shoes of the accused would have held the same belief.
3. The conduct you are accused of engaging in was not considered by the court as the ‘operative’ or main cause of the financial advantage or financial disadvantage caused.
4. Mental illness defence.

If any one of the above defences apply to your case, you may be able to first negotiate with police to getting the charges dropped early in the proceedings through sending legal representations to the police.

Legal representations is a letter drafted by an experienced criminal lawyer who outlines all the holed in the prosecution case in an attempt to get charges either dropped or downgraded. It is the formal way to initiate negotiations with the police.

In any event, if any of the above defences apply, the matter will be dismissed by a Judge or Magistrate in court.

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